How will the legal system treat Omar Khadr’s request for compensation?

Stephen Neil is a summa cum laude graduate of the University of Ottawa School of Political Studies, and a J.D. Candidate at Osgoode Hall Law School. Stephen works and resides in Toronto. You can follow him on Twitter at @stphnneil.

With Omar Khadr’s repatriation to Canada from Guantanamo Bay now a question of ‘when’, rather than ‘if’, many have pondered what, exactly, Khadr will do when he returns to right a situation many see as being an unfortunate wrong. “I’m glad everyone’s having fun,” National Post columnist Chris Selley tweeted this week, “but eventually Omar Khadr is coming home, and we’re going to make him a millionaire”.

But will we?

Selley is, of course, referring to compensation from the Government of Canada for breaching Khadr’s Charter rights and for dragging its feet in processing and executing his transfer request. The legal road to such compensation, however, is far from clear — Omar Khadr’s case is entirely novel in Canadian law.

For those unfamiliar, Omar Khadr is a Canadian citizen who spent most of his young life in Pakistan at the wishes of his father, Ahmed, who himself was an al-Qaeda financier. Khadr was fifteen when, in 2002, he was involved in a firefight in Afghanistan and threw a grenade that killed Christopher Speer, a U.S. combat medic. Khadr has since been put through what can only be described as a Kafkaesque legal journey, involving stints in U.S. detention centres in Bagram, Afghanistan, and Guantanamo Bay, Cuba.

In 2010, Khadr agreed to a plea bargain with U.S. prosecutors. Although the terms of the deal are not public, it reportedly stipulated that Khadr would serve one additional year of solitary confinement in Guantanamo Bay, at which point he could be transferred to Canada to serve out the remainder of an eight-year sentence. Khadr has been eligible for repatriation to Canada since October, 2011. His transfer request has been okayed by U.S. officials and since at least early this year, it sits on the desk of the Minister of Public Safety, Vic Toews, for final approval.

So, returning to the issue at hand — assuming Khadr wishes to seek compensation, how does he, as a matter of law, go about getting it? Two main avenues spring to mind, though neither parallel Khadr’s situation neatly.

The first is the more unlikely of the two and, strictly speaking, does not involve the courts. Recall the 2002 case of Maher Arar, the Syrian-Canadian software engineer who, on the basis of misinformation provided by the RCMP, was detained by the U.S. in New York and put on a plane to Syria to face a period of torture-ridden interrogations at the hands of Syrian officials. Following a government-ordered commission of inquiry, the Government of Canada and Arar reached a $10.5 million settlement.

Now, there are plenty of reasons to believe that, once Khadr returns, there will be no such settlement and no such judicial inquiry. Most obviously, as between the two cases there are differing levels of perceived culpability. On the one hand, the Arar Inquiry found that Arar had no links to terrorist organizations and that Canadian officials played a clear and direct role in Arar’s ‘extraordinary rendition’. Conversely, despite being a child soldier at the time the events in question transpired, Khadr was convicted of five terrorism and war crimes-related offences. Whether rightly or wrongly, the current government’s handling of the file has made one thing clear: there is no sense of responsibility in Ottawa for Omar’s fate.

Okay, so, forget a judicial inquiry, forget a settlement, and forget an apology. Khadr may be able to take advantage of a very recent development in Canadian constitutional law — monetary damages as a remedy for a violation of one’s Charter rights.

In 2010, the Supreme Court of Canada affirmed that damages are a ‘just and appropriate’ remedy for a Charter breach when no other remedy would do the trick, and when damages would further one or more of the following objectives: compensation, vindication, and/or deterrence of future breaches.

In the first place, the Government of Canada violated Khadr’s right to life, liberty, and security of the person when, in 2003 and again in 2004, CSIS agents travelled to Guantanamo Bay and interrogated Khadr. In doing so, the top court said, Canada was, “participating in a process that was violative of Canada’s binding obligations under international law”. What is more, it is hardly a stretch to say that, in Khadr’s case, damages would further all three of the objectives of constitutional damages.

Khadr was first detained while a child soldier, and now, nearing twenty-six, he has spent more than a decade detained under legally questionable circumstances. No amount of compensation will replace ten years of injustice, but damages are a start. Moreover, vindication, as an objective, is concerned with maintaining society’s faith in the court’s ability to protect constitutional rights; the more serious the Charter breach, the more pressing the need for vindication. Considering the gravity of the breach of Khadr’s Charter rights, damages — a rare and severe remedy — may be the type of vindication the law requires. Finally, a damage award would send a clear message to Canadian law enforcement officials: Charter rights cannot be breached without repercussions, even when they are breached, ostensibly, in the name of public safety.

Seeking constitutional damages is only one approach. Keep in mind, there are a whole host of ways the Government of Canada may be civilly liable to Khadr — be it negligence, defamation, or abuse of public office.

There’s a rub, though, and it’s a big one.

The Supreme Court has already resolved issues based on these underlying facts — twice — and our courts won’t reopen cases that have already been decided. Before Khadr has the opportunity to make any kind of constitutional or civil law argument seeking damages, he will have to convince a court that such an argument is based on sufficiently ‘new’ facts, raising sufficiently ‘new’ evidence and issues.

Perhaps this roadblock won’t trouble the courts, or perhaps the recent feet dragging by the Minister of Public Safety to approve Khadr’s transfer request will be seen as a new and discrete Charter breach. In any event, the lawyers involved will need to get creative, for the law has never encountered an Omar Khadr before.

The views, opinions and positions expressed by all iPolitics columnists and contributors are the author’s alone. They do not inherently or expressly reflect the views, opinions and/or positions of iPolitics.

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The views, opinions and positions expressed by all iPolitics columnists and contributors are the author’s alone. They do not inherently or expressly reflect the views, opinions and/or positions of iPolitics.